Samuel Verdin v. Kathleen Alison

Opinion

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

SAMUEL VERDIN, Case No. ED CV 22-00597-DMG Plaintiff, (SSC) v. ORDER ACCEPTING KATHLEEN ALLISON, et al., FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF Defendants. UNITED STATES Pursuant to 28 U.S.C. § 636, the Court has reviewed all of the records herein, the Report and Recommendation of United States Magistrate Judge, and Plaintiff Samuel Verdin’s Objections to the Report and Recommendation. The Court has engaged in a de novo review of those portions of the Report and Recommendation to which Plaintiff has objected. In this prisoner civil rights action, the Report and Recommendation (“Report”) recommends dismissal of Plaintiff’s third amended complaint with leave to amend only an Eighth Amendment claim for delayed and/or inadequate medical care. [Doc. # 32.] Plaintiff’s objections to the Report [Doc. # 35] do not warrant a change Plaintiff objects that the Magistrate Judge seems “hostile to Plaintiff’s claims.” Id. at 3. To the extent that Plaintiff is alleging judicial bias, this conclusory objection fails to establish it. See United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995) (“mere conclusory allegations” are “insufficient to support a claim of bias or prejudice such that recusal is required”) (citing United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980)); Yagman v. Republic Insurance, 987 F.2d 622, 626 (9th Cir. 1993) (mere speculative assertions of invidious motive are insufficient to show judicial bias). Plaintiff objects that Defendants are not mere prison officials but instead are peace officers under California law and, therefore, are not “entitled to the commonly held deferential standards afforded to prison officials/staff under the Eighth and Fourteenth Amendments.” [Doc. # 35 at 3–5.] This objection does not undermine the Report’s review under the applicable standards for Plaintiff’s Eighth and Fourteenth Amendment claims. For his Eighth Amendment claim, Plaintiff was required to provide allegations that would “objectively show that he was deprived of something sufficiently serious [and] make a subjective showing that the deprivation occurred with deliberate indifference to the inmate’s health or safety.” ([Doc. # 32 at 5 (quoting Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013).) For his Fourteenth Amendment claim, Plaintiff was required to provide allegations that would show more than the mere “denial of an inmate’s grievances.” (Id. at 27. Under these applicable standards, Plaintiff’s allegations were insufficient. Plaintiff objects that his state law claims are not barred in an action under 42 U.S.C. § 1983. [Doc. # 35 at 5–7.] As the Report found, [Doc. # 32 at 17 (citing Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990).] Although Plaintiff attempts to distinguish Barry [Doc. # at 5–6], the Report’s reliance on it was proper. Under § 1983, “in order to prevail [Plaintiff] must . . . prove deprivation of a federal constitutional or federal statutory right.” Barry, 902 F.2d at 772. An alleged violation of state law does not suffice. See id. And although Plaintiff makes a related argument about supplemental jurisdiction of his state tort claims [Doc. # at 6–7], the Report properly found that “the Court should not exercise pendent jurisdiction over them in light of the recommendation that all of Plaintiff’s COVID-19 related Eighth Amendment claims be dismissed.” [Doc. # at 17 (citing Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994).] Plaintiff objects that Defendants’ response to the risks of COVID- 19 was not reasonable. [Doc. # 35 at 7–9.] The objection does not undermine the Report’s finding that Plaintiff did not plead facts “showing the unreasonableness of the measures allegedly employed to attempt to mitigate the effects of a fast-moving and fast-evolving pandemic in an institutional setting, particularly given the contemporary uncertainty regarding not only the nature of the virus but also the efficacy of various containment or mitigation strategies.” [Doc. # 32 at 10 (citing Hall v. Allison, 2022 WL 3013162, at *11 (C.D. Cal. July 18, 2022), and similar cases).] And although Plaintiff also objects that there was supervisory liability [Doc. # 35at 8], he has not alleged that any supervisors “were personally involved in, or ‘culpable for action or inaction, in supervision or control of [their] subordinates, acquiesced in Plaintiff’s alleged constitutional deprivation, or showed a reckless or callous indifference to Plaintiff’s rights.’” [Doc. # 32 at 14 (quoting McKissick v. Gastelo, 2021 WL 6617389, at *6 (C.D. Cal. Aug. 20, 2021).] Plaintiff objects that tort-like acts by government actors, no matter the source of law, can be remedied under 42 U.S.C. § 1983. [Doc. # 35 at 9–10.] This objection does not overcome the Report’s determination that violations of state law are not cognizable and that the Court should not exercise pendent jurisdiction over Plaintiff’s state tort claims in light of the dismissal of the COVID-19 related Eighth Amendment claims. [Doc. # 32 at 17.] Plaintiff objects that his allegations regarding treatment for his injuries incident to his recreational activities were, contrary to the Report’s finding, more than threadbare. [Doc. # 35 at 10–11.] This objection does not overcome the Report’s finding that Plaintiff failed “to state when, to whom, or by what means such ‘requests’ [for medical treatment] were made.” [Doc. # 32 at 24.] Nevertheless, Plaintiff will have an opportunity to raise this claim in a fourth amended complaint because it is not readily apparent that he cannot allege a constitutional violation. Id. at 26. Plaintiff objects that his due process claim was adequately stated on pages 11 to 12 of the third amended complaint. [Doc. # 35 at 11.] On these pages, Plaintiff alleges he filed several grievances regarding inadequate treatment. [Doc. # 30 at 11–12.] This allegation does not undermine the Report’s finding that “[a] prison official’s denial of an inmate’s grievances, without more, cannot serve as a basis for § 1983 liability.” [Doc. # 32 at 27 (citing Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“inmates lack a separate constitutional entitlement to a specific grievance procedure”) and similar cases).] l The Court accepts the findings and conclusions of the Magistrate 2 Judge in the Report and Recommendation. 3 IT IS ORDERED that as to the third amended complaint: (1) all 4 state law claims are dismissed without leave to amend but without 5 prejudice; (2) all federal claims except Plaintiff's Eighth Amendment 6 claim for delayed and/or inadequate medical care are dismissed with 7 prejudice and without leave to amend; and (3) the Eighth Amendment 8 claim for delayed and/or inadequate medical care is dismissed with 9 leave to amend. Within 30 days of this order, Plaintiff may file a fourth amended complaint containing only an Eighth Amendment claim for delayed and/or inadequate medical care that remedies the deficiencies outlined in the Report and Recommendation which has been adopted by this Court. DATED: December 30, 2024 Dn . 50 CHIEF UNITED STATES DISTRICT JUDGE